Review: The Conscience of the Constitution, by Timothy Sandefur

The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty, by Timothy Sandefur. Washington, DC: Cato Institute, 2014. 200 pp. $24.95 (hardcover).

sandefur-conscience While the principles of liberty on which America was founded are under attack from so-called liberals and conservatives alike, and while expanding abuses of government power are too vast and complex for most Americans to fully follow, books by rational, knowledgeable professionals clearly and concisely explaining the problems and offering solutions are of immense value. Timothy Sandefur’s The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty fits this bill.

Sandefur, a principal attorney at the Pacific Legal Foundation and an adjunct scholar at the Cato Institute, bases his latest work on an underappreciated idea in American legal thinking. It is the idea that the Declaration of Independence—understood as a formal, legal, diplomatic document issued by the representatives of thirteen British colonies to the king of England—is part of the law of the land, just as are the Constitution and the Bill of Rights. In fact, argues Sandefur, the Declaration used to be seen as the “conscience of the Constitution,” and reviving this understanding of its position in the framework of U.S. law will go a long way toward establishing the moral and political context within which lawyers, judges, and Supreme Court justices should argue and interpret constitutional law.

Sandefur’s thesis is controversial and is not likely to be well received in modern courts and law classrooms. Most law schools teach students to view the Declaration as a mere manifesto or letter of aspiration. But Sandefur wages a compelling intellectual defense of the Declaration-as-law on two fronts: against leftists, who have ridiculously claimed that the document was drafted as a wink-and-nod effort by elite white men to put down minorities and the lower classes; and against conservatives such as Russell Kirk and neoconservatives such as Irving Kristol who, afraid of its “natural rights” language, dismiss the ideas of the Declaration and characterize it as an underhanded “ploy to lure the French” into conflict with the English (p. 14).

Sandefur, pointing out the baseless nature of such criticisms, puts forth a strong argument for holding the Declaration as law and highlights the Founding Fathers’ own understanding of it as such. Among other things, he shows the inconsistency of dismissing from U.S. law the Declaration but not other founding documents; and he argues that, “[a]s a resolution approved unanimously by the Continental Congress, a body whose other resolutions have never been regarded as anything less than law, the Declaration obviously had legal consequences, separating the United States’ legal system from that of Great Britain” (pp. 14–15). He also points to the inconsistency of legal scholars who incorporate the Declaration procedurally but not substantively, noting:

American law still takes July 4, 1776, as the starting point of the nation’s political autonomy. . . . In fact, beginning with Nevada in 1864—the first state admitted after the southern states seceded—every new state has been required, as a condition of admission into the union, to draw up a constitution consistent not only with the federal constitution but also with the Declaration of Independence. (p. 15)

Sandefur repeatedly and effectively recruits the Founders themselves: “Lawyers of the Founding Era, such as Thomas Jefferson, James Wilson, and others regarded the Declaration as law . . . as did later lawyers and government officials, including Abraham Lincoln.” In light of such evidence, Sandefur writes, “It is hard to understand why we would deny the Declaration as standing law” (p. 15).

Sandefur also anticipates and addresses objections to his argument, granting that

the Declaration is not a detailed framework of government in the way that the Constitution is, and it would do little to resolve most ordinary legal cases. But it is a part of our organic constitution—that is, one of the fundamental laws that constitutes our legal order and makes the American people a political unit. (p. 16)

This approach to the Declaration, as Sandefur describes it, would, if widely accepted, transform American jurisprudence.

In his first chapter, “Democracy and Freedom,” Sandefur offers a positive assessment of the Declaration and its basic presumptions, contrasting his views with those of the guiding philosophy of American legal professionals today, legal positivism. Where the Declaration asserts that liberty is a “blessing” and that man is endowed with certain natural rights, positivism holds that rights and freedoms are mere privileges to be defined, dispensed, and withdrawn by the government as elected representatives see fit.

Positivists enshrine democratic majority will as the source of legitimate law. “But,” writes Sandefur, “it is curious when we recollect that the word democracy is nowhere to be found in either the Constitution or the Declaration of Independence” (p. 5).

Sandefur goes on to challenge dominant views and conventions in modern American political thought and jurisprudence that hold majority will above individual rights, as well as long-standing case law and political practice based on that prioritization. He then ushers the reader through important eras and moments in American legal history, asking along the way, “How did we get here?” and “What could a better incorporation of the Declaration mean to the defense of our political rights and freedoms?”

In the process, Sandefur exposes the irrational jurists (who run the gamut from progressives such as Oliver Wendell Holmes to conservative favorites such as Antonin Scalia) and highlights the noble—and sometimes victorious—proponents of individual rights who battled over important legal and moral questions through such difficult times in American history as the Reconstruction Era and the Great Depression. Throughout this weaving of history and analysis, Sandefur focuses on fundamental ideas and discusses ways that legal professionals could better approach and understand the history and principles of law.

Sandefur devotes one of the book’s six chapters to untangling modern debates about judicial “restraint” versus judicial “activism,” in which, among other things, he points out the reality that jurists’ political and philosophical beliefs affect their rulings.

Rejecting the progressive notion that law can be interpreted without the influence of moral or philosophical guidance, Sandefur points out that even the most ardently “amoral” jurist relies on certain moral concepts and premises, consciously or not.

Ever since the Progressive Era, legal thinkers have searched in vain for some way to avoid normative issues. . . . In the end, these efforts are futile, because promoting majoritarian democracy is itself a normative value. . . . We cannot say whether a legislature is competent to settle an issue, or whether it has fallen prey to unfair biases, without first having a substantive value . . . to which we can compare it. . . . Any theory of judicial deference based on moral agnosticism or on promoting process over substance must therefore be abandoned. (p. 152)

Sandefur shows similar dexterity in two chapters on the concept of “substantive due process,” the idea that the Fourteenth Amendment’s insistence that individuals not be deprived of their rights without due process of law goes well beyond matters of formal procedure. Most modern legal scholars contend that the standards the Fourteenth Amendment set are met simply by demonstrating that legal procedures were faithfully followed and that defendants were given a proper hearing, whereas advocates of substantive due process counter that determining whether due process of law has been upheld requires a jurist to consider whether the actions of the government were within its proper, limited purview in the first place. Sandefur eloquently defends this latter idea, drawing on political theorists, case history, and the principle that the only proper purpose of government is to protect individual rights.

The book does err, at least in the form of an omission. Sandefur characterizes rights as “natural” and “objective” without explaining what it means for them to be natural or objective; this omission leaves his argument open to criticisms that rights are neither-nor. (For an interesting exchange on this point, see Sandefur’s letter to the editor and Craig Biddle’s reply in the Spring 2012 issue of TOS.)

As a work of legal and American history, Sandefur’s book is excellent. Sandefur effectively argues that “a jurisprudence rooted in this nation’s substantive commitment to liberty must have a healthy respect for the natural-rights philosophy on which the Constitution was based” and that “[o]ur Constitution was written on the premise that objectively valid political principles and human rights do exist and can be known by lawyers and laymen alike” (pp. 154–55). At the legal level, Sandefur knows what is needed to defend our freedoms in the courts and law classrooms of America. May The Conscience of the Constitution reach minds far and wide.